What kind of constitution is the subject of this book?
posted by Joey Fishkin
First, thanks to Danielle and Jack for the opportunity to participate in this symposium. I’m happy to do it because I think this is a fantastic book.
Among many other things, this book offers a particularly well-developed story about the role that stories play in constitutional argument and constitutional change. I thought I’d start there, because that piece is at the foundation of the argument of the book. Also it has the fun property that once you start thinking in its terms, you start seeing examples everywhere. Indeed you see these moves even in debates that are not, explicitly, constitutional debates.
And this raises an interesting question: to what extent is this book about faith in the Constitution, and to what extent is it, instead, about faith and redemption in something like the broad political/constitutional project of the United States? It is hard to separate these things. But let’s look at places where the two might plausibly come apart. Jack (citing Mark Graber) notes that in recent years, among liberals, the canonical example of a policy problem the constitution does not address is the distribution of income and wealth (132-33). So let’s begin with the stories we tell about fiscal policy.
Last April, President Obama made a speech on the deficit and fiscal policy in which he offered a defense of Medicare, Medicaid, and unemployment insurance, along with Social Security. He said: “From our first days as a nation, we have put our faith in free markets and free enterprise as the engine of America’s wealth and prosperity. More than citizens of any other country, we are rugged individualists, a self-reliant people with a healthy skepticism of too much government. But there’s always been another thread running through our history -– a belief that we’re all connected, and that there are some things we can only do together, as a nation.” After discussing such collective projects as schools, science, the military, and the interstate highway system, Obama argued that Medicare, Medicaid, unemployment insurance, and Social Security were part of this “American belief that we are all connected,” which is in part a “conviction that each one of us deserves some basic measure of security and dignity.” He argued, “We are a better country because of these commitments. I’ll go further – we would not be a great country without those commitments.”
Rick Santorum sharply criticized these comments in a speech in June. Santorum quoted the lines above and responded, “Ladies and gentlemen, America was a great country before 1965!” When the applause died down, he continued: “Social conservatives understand that America is a great country because it was founded great. Our founders, calling upon, in the Declaration of Independence, the Supreme Judge, calling upon Divine Providence, said what was at the heart of American exceptionalism. In the Declaration of Independence it said ‘We hold these truths to be self-evident, that all men are created equal and endowed by our Creator with certain inalienable rights.’ You see, our founders understood that we were going to take the principles, Judeo-Christian principles, that had been out there for centuries, and we were going do something radical. We were actually going to found a government upon these principles.”
The positive account of the constitutive role of stories in Constitutional Redemption gives us a framework for understanding what both Obama and Santorum are up to. They are both constructing narratives that identify what they take to be the nation’s fundamental commitments by telling stories about the past. The explicit argument between the two of them is over how we ought to situate the Great Society in our narrative. But it is hard to miss the rumblings of broader cultural debates—civil rights, busing, abortion—in the assertion that “America was a great country before 1965” and the applause that followed that line. Implicitly, the two narratives here suggest different heroes and villains, different accounts of how we should view the uphevals of the 1960s and early 70s. Santorum’s rhetorical move is a classic: trying to discredit Obama’s narrative by arguing that it is insufficiently reverential of the past, specifically of the fact that the country “was founded great.” I imagine Jack would view this form of argument as a form of what he calls apology or theodicy.
The most striking thing about Obama’s remarks is the degree to which they give equal space to two different, conflicting narratives: one of rugged individualism and independence, the other of community, connectedness, and dignity. (If anything, he tells more of the story of the individualistic narrative, even though that narrative is not one within which he can make the case for the Great Society.) Like Obama the politician, Obama the storyteller seems to take a balanced, pluralistic tack, rather accommodating of the narratives of his opponents. And here at least, he does not attempt to link the American commitments that underlied the Great Society to any story about the founding or the Constitution itself. One certainly could do so. My colleague Willy Forbath argues, very persuasively, that the social and economic commitments forged in the Progressive era, and then fulfilled to some degree in the New Deal and the Great Society, together make up not just a policy story but a constitutional story.
However—and this is the reason I picked these two quotes to discuss—neither Obama nor Santorum makes any explicit reference to the U.S. Constitution. (Santorum does discuss the Declaration, and he may believe, like Jack, that it has constitutional status—even if he reads it as basically a Judeo-Christian religious charter, a story rather different from Jack’s!) These speeches by Obama and Santorum are clearly doing what Jack is talking about in Constitutional Redemption. They are using stories to build arguments about America’s fundamental commitments. But they are doing it in terms that are not explicitly constitutional—or at least, not explicitly Constitutional.
Politicians and ordinary people seem to do this all the time. We do not just tell stories about the meaning of the Constitution, the founding, Reconstruction, and the Declaration. We tell stories, for example, about the meaning of events like the Cold War. And these stories work in just the way Jack describes. I grew up understanding the end of the Cold War as a great victory of democracy over Soviet totalitarianism. I was surprised to discover later on that to other Americans, who grew up with different narratives and normative commitments, the Cold War was something quite different: for some, a victory of free market economics over socialism, and for others, a victory of Christian civilization over godless Communist atheism. These narratives, needless to say, shape one’s sense of the heroes and villains, the commitments made, and what it means to honor or affirm the legacy of this piece of American history. Such stories are clearly part of what Jack calls the “constitutional culture” (178).
So this leads me to my question. Is Jack’s story of constitutional redemption bigger than the Constitution? Is this book really about faith in something like the project of the United States—its ideals, its promise, its commitments, its possible future redemption—rather than just the Constitution? Or does that question get it completely wrong, because there is no such dichotomy: instead, to the degree that Obama or Santorum or any of us is arguing about our fundamental commitments as a nation, we are (therefore) arguing about our constitution? Jack hints in the latter direction in early part of the book, in his argument that the Declaration is part of the constitution because the Declaration constitutes us. If that is the case, then the constitution that matters for purposes of Jack’s argument is really the American version of the British constitution—not the written document but a set of fundamental commitments that constitute us (some but by no means all of which have to do with our written document). Still, at other points, particularly in the last chapter, Jack emphasizes the distinctive role of Constitutional text.
To put it simply, what is this “constitution” to which we are all professing faith? Is it a document, or is it a narrative? When we tell constitutional stories, are we telling stories about a Constitution, or are the stories themselves the constitution? Are we really the people of the Book we profess to be, or is that just a story we like to tell?
August 1, 2011 at 2:49 pm
Posted in: Constitutional Law, Constitutional Redemption Symposium, Law and Humanities
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